Friday, October 31, 2014

Story here: http://seattletimes.com/html/localnews/2024910962_supremecourtrapexml.html

Reversing what it called “incorrect and harmful” earlier rulings, the Washington Supreme Court said Thursday the state cannot put the burden on rape defendants to prove that an alleged victim consented — a decision critics said will make it harder to punish dangerous sex offenders.

The court had previously ruled that when a defendant claimed the contact was consensual, it was up to the defendant to prove there was consent by a preponderance of the evidence. The rulings essentially made consent an affirmative defense to a rape charge, the way a killer can claim self-defense in a murder case.

But in a 6-3 opinion Thursday, the justices said those decisions wrongly interpreted U.S. Supreme Court precedent. Prosecutors must prove every element of a crime beyond a reasonable doubt, and making a defendant prove that there was consent got that requirement backward, they said.

“Requiring a defendant to do more than raise a reasonable doubt is inconsistent with due-process principles,” Justice Debra Stephens wrote for the majority, saying it raises “a very real possibility of wrongful convictions.”

Justice Susan Owens wrote the dissent, arguing that the majority’s opinion would reverse decades of progress in the handling of rape cases.

Before 1975, she noted, rape was defined in state law as sex “committed against the person’s will and without the person’s consent.” This required prosecutors to prove that a rape victim had not consented — meaning trials often focused as much on the actions of the alleged victim as on the actions of the defendant. That discouraged victims from reporting the crimes.

The Legislature changed the definition in 1975, removing the reference to consent and requiring prosecutors to prove “forcible compulsion” — force that overcomes resistance, or threats that put a person in fear of death or injury. The intent was to put the focus back on the actions of the defendant, Owens said.

“Placing the burden on the State to disprove consent wrongfully puts the victim’s actions and reputation on trial,” she wrote. “Not only does the majority’s decision invalidate years of work undertaken to properly refocus our rape law, but it also has serious implications for victims of an already underreported type of crime.”

Emily Cordo, former legal director of the Sexual Violence Law Center in Seattle, agreed.

“You are going to have decisions from jurors based on misperceptions about how victims should behave rather than based on what the defendant did,” she said. “Washington, like every other state, has a real problem getting actual rapists convicted. This makes it that much more difficult.”

But the majority said the use of force is an element of the crime: It can’t be true that a rape case involved both forcible compulsion and consent. For defendants to prove consent, they are also disproving forcible compulsion — which means the state has been requiring the defendant to prove they didn’t commit the crime, rather than requiring prosecutors to prove the defendant did.

The ruling came in the case of a boy identified only as W.R. Jr., who was convicted of second-degree rape in King County. He was awarded a new trial.

“I don’t think there’s any concern we’re going back to the dark days of rape prosecution,” he said. “This doesn’t change much. It just clarifies for jurors who has the burden of proof and who doesn’t. Outside this one area of law, that’s the way things are always done.”

Link said because of procedural rules, he did not expect the ruling to lead to many new trials for defendants convicted under the old court holdings.

Thursday, October 30, 2014

" . . . the fact that a woman was drunk can’t be the sole criteria for whether she was raped or not,” Brett Sokolow explains here, “and frankly, a lot of schools were getting this wrong. There is a vast difference between drunk and incapacitated.”

Read that again: "a lot" of schools. Not just a few. Or some. Or a handful. "A lot."

Sunday, October 26, 2014

A federal jury awarded exoneree Jeffrey Deskovic $40 million on Thursday after finding that ex-Putnam Sheriff's Investigator Daniel Stephens fabricated evidence and coerced Deskovic's false confession to the 1989 murder of a Peekskill High School classmate.

Lawyers on both sides said they believed it was the largest jury award ever in a wrongful conviction case. Putnam County will only have to pay $10 million because of a pretrial settlement that limited damages.

"I feel elated. The jury obviously saw that Daniel Stephens' testimony was not truthful," said Deskovic, who turns 41 next week. "I feel like I finally got the fair trial I never got before."

Deskovic was convicted in 1990 for the rape and murder of 15-year-old Angela Correa, based solely on a false confession he gave Peekskill detectives after a polygraph examination administered by Stephens.

At the 1990 criminal trial, jurors knew Deskovic's DNA did not match semen found on the victim. But they relied on Assistant District Attorney George Bolen's spin that the victim could have had consensual sex with someone else before the killer raped her. Bolen was able to do that because Stephens claimed Deskovic told him that the killer may not have ejaculated.

Deskovic maintained that he never made that statement and that Stephens came up with it only after Deskovic's arrest, when authorities learned the DNA did not match.

He was sentenced to 15 years to life in prison and served nearly 16 years before being exonerated in September 2006 after new DNA testing identified the actual killer, Stephen Cunningham.

Saturday, October 25, 2014

It's a great quote, and it appears in this week's Time Magazine in a story about the letter published last week in the Boston Globe signed by 28 Harvard law professors voicing strong objections to the school's one-sided, feminist-inspired sexual misconduct policies.

But when Dershowitz continued and said that people accused of rape should have a full and fair opportunity to defend themselves, Time pooh-poohed it: "It's a noble idea, but . . . ."

The "but" included Time's observation that "a student disciplinary hearing is a civil matter, not a criminal one." This a frequent refrain from people who are willing to tolerate the academy's hostility to due process as the price of battling the sexual assault "epidemic." It doesn't hold up to scrutiny, and Time ought to know better.

What Time and others who chant that line don't seem to understand is that in civil cases, the defendant is afforded all manner of evidentiary protections that colleges routinely deny young men accused of sex offenses. In civil cases, defendants are allowed to be fully represented by counsel at every stage of the proceeding. They are permitted to vigorously depose prior to trial, and vigorously cross-examine during trial, the accuser and any other pertinent witnesses. Aside from depositions, they are also permitted to engage in all manner of discovery, including proffering requests for admissions, requests for production of documents, and interrogatories. And if the plaintiff fails to respond to proper discovery requests, she is sanctioned by the court, up to and including dismissal of her case and requiring her to pay the other side's attorney's fees. Hearsay evidence is excluded, as is evidence whose probative value is outweighed by its prejudicial effect to a party. Trial and appellate judges are lawyers bound by centuries of common law precedent. And the defendant has a hand in picking the jury in order to insure fairness in the adjudication.None of that is present in kangaroo campus sex proceedings. If we're going to take solace in the fact that college disciplinary hearings are just "civil matters," lets insist that they start resembling civil proceedings -- as opposed to Kafkaesque Soviet show trials.

Time also trivialized the harm to young men expelled from school for sex offenses they didn't commit. Colleges can't jail men found responsible for sex offenses, Time noted, they can "only" banish them from campus. In fact, expulsion can be a life-altering punishment. Cornell's Prof. Cynthia Bowman said this: “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma. To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” Brett Sokolow, probably the most prominent victim's advocate on American campuses, has expressed concern that "a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” He, too, points out that the stakes are high for students expelled for sexual assault: expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake.

Time also trots out the seriously disputed "one-in-five" as if it were a fact. Not even the Washington Post buys that one.

Time's conclusion? Any unfairness to our sons who happen to be accused of sex offenses is just a natural "growing pain" after so many years when schools neglected our daughters when they were raped. In 20 years, maybe the schools will get it right.

In other words, nothing to see here, nothing to be concerned about. Move along.

Friday, October 17, 2014

A few days ago, a 30-year-old extremist blogger named Ezra Klein wrote how terrible California's "affirmative consent" law is. But then he proceeded to reduce "other" men to vile caricature, posit that women have it very bad, suggest that the law until now has been designed to protect males who rape all too often, and assume that women are as helpless as a leaf in the wind -- given all that, he not only endorsed the "terrible" California law but advocated that men should be punished for even ambiguous sexual encounters. Among the most twisted paragraphs in this asinine piece was this one:

Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty D–n Sure.

After that otherworldly bit of insanity, the Internet was overrun with outrage, and now, Ezra apparently doesn't like being regarded as what he is -- a laughing stock -- so he's written an angst-ridden explanation that, to put it charitably, is a mess. The heart of this mess is the following (and I explain why what he says here is so wrong below):

Jon Chait writes that I am "arguing for false convictions as a conscious strategy in order to strike fear into the innocent." That is, seriously, among the most insane things I've ever seen someone read into my writing.

But I think I understand where Chait got that, so let me try and explain this more carefully. In the part of my piece Chait quotes, I say that for a consent culture to be established, college boards will have to "convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations," and that the stories of those convictions, which will often feel deeply unfair to accused and even sound unjust when described by the accused, will have to become broadly known to parents and college students. But I think Chait and I have very different definitions of ambiguous.

He seems, worryingly, to equate "ambiguous" with "innocent." But imagine a party where the man and the woman go home together, and they're both pretty drunk. They're making out, and the man wants to go further. She says, "I'm not sure I want to do that," but she doesn't quite say no. He's persistent, though. Not forceful, but persistent. Five minutes later he tries again. Again, she says something that's not quite "stop!", or maybe she says nothing and simply moves his hand away. And five minutes after that, he tries yet again. Eventually, she shuts downs somewhat, lets him do what he wants. What happened here?

It's perfectly possible that the guy thinks nothing happened. She was a bit reluctant, and he persuaded her with his incredibly hot sex moves. Or maybe he thinks she wasn't reluctant, and she was just saying no to show she's not that kind of girl, and he did exactly what she wanted. In either case, he probably believes that she gave him implicit consent when she let him go forward. He's a nice guy. He would never, ever assault a woman.

But to her, it might look entirely different. She was exhausted, and drunk, and maybe far from home. She was in a room with a man who outweighed her by 70 pounds and was insistent on going further than she was comfortable with. She tried to warn him off twice and he still kept pushing. Maybe she was feeling too drunk to fight. Maybe she read his tone as threatening. Maybe she thought that if she said "no," the situation would turn violent. Maybe, sometime around his third pass at something she didn't want to do, she stopped thinking he was a nice guy, and began thinking he was a dangerous guy.

(Emphasis added.)

Ezra, Ezra, Ezra, just stop! We all know what "ambiguous means," but you don't know what you're talking about.

Klein is advocating that schools punish men for what is technically called "sexual coercion." No rational person questions policies that punish sex procured by physical threats. That’s not what is at issue here. Klein is talking about sex procured after “unreasonable” verbal or emotional pressuring. In Ezra's hypothetical, she consented. Period. She allows him to proceed. In a culture where sex roles of pursuer and “hard to get” have been fairly divided along gender lines for eons, to categorize that kind of consent as sexual assault would convict virtually every sexually active male in America. Perhaps that's Ezra's goal? “Sexual coercion” sanctions men not for forcing themselves on, or physically threatening, women, but for doing nothing more than nagging for sex. Ezra wants men to be punished for doing precisely what, for decades, society has been telling them they’re supposed to do — ask for sex. Ezra's analysis is rife with legal infirmities. Read on.

"Sexual coercion" has been a policy violation at many colleges, long predating the "affirmative consent" craze, but it's very rarely applied, for good reason. Under it, the school can invalidate a woman's manifested assent by deciding that the man’s conduct in obtaining it was too boorish, too overbearing, or too insensitive, even though the “victim” had reasonable alternatives to engaging in the sex act but chose not to exercise them.

In Klein's hypothetical, she's not incapacitated. The guy does not force himself on her. He merely asks, and he doesn't make his move until she allows him. After a couple of rebuffs, she "lets him do what he wants." Klein proceeds to speculate as to her motivations for letting him proceed, and he concludes that it is justifiable that he be punished for sexual misconduct if she later decides to file a complaint.

The problem with Klein's analysis is that it turns centuries of settled law on its head. "Consent" is never assessed based on the subjective, secret whims of the party giving it. The only legal test that is fair and just, the only legal test that works, is whether a party's outward manifestations reasonably lead the other party to conclude consent is present. All of Klein's speculation about her motives is legally impertinent.

Consent in the rape milieu has its roots in contract law, and it is there that we need to seek guidance. Not all agreements formed with apparent assent are legally binding. Duress is a common law concept employed to invalidate contracts due to the absence of the kind of freely given consent that society has decided is necessary to bind people to their promises. The classic example is a loaded gun pointed at someone’s head with a threat that “either your brains or your signature will be on the contract,” per Don Corleone. A contract is voidable for duress if (1) the victim’s manifestation of assent has been induced by an improper threat, and (2) the victim has no reasonable alternative except to manifest assent.

Ezra Klein’s brand of “sexual coercion” fails on both counts. Asking for sex, even repeatedly, is not an improper threat (in case Ezra doesn't know this, rapists don't ask), and being able to say “no” and to get up and walk away is a reasonable alternative. End of inquiry. Big Sister needs to get out of the bedroom.

“Sexual coercion” has its roots in an extremist tradition of rape advocacy that encourages purported victims to engorge the definitions of “rape” and “sexual assault” to include all manner of alleged violations that are neither “rape” nor “sexual assault.” Time once famously wrote: “Catherine Comins, assistant dean of student life at Vassar, . . . sees some value in this loose use of ‘rape.’ She says angry victims of various forms of sexual intimidation cry rape to regain their sense of power. ‘To use the word carefully would be to be careful for the sake of the violator, and the survivors don’t care a hoot about him.’ Comins argues that men who are unjustly accused can sometimes gain from the experience. ‘They have a lot of pain, but it is not a pain that I would necessarily have spared them. I think it ideally initiates a process of self-exploration. ‘How do I see women?’ ‘If I didn’t violate her, could I have?’ ‘Do I have the potential to do to her what they say I did?’ Those are good questions.’” Time correctly noted: “Taken to extremes, there is an ugly element of vengeance at work here. Rape is an abuse of power. But so are false accusations of rape . . . .” See here.

Writer Joanne Jacobs aptly explained: “In the largest survey of campus date rape, 43 percent of women classified as rape victims had not realized they’d been raped.” Was this because women were hesitant to label rape as a crime? “Hesitant to label rape a crime?” Ms. Jacobs scoffed. “No, they were hesitant to label having sex ‘when you did not want it because you were overwhelmed by continual arguments and pressure’ as rape, which is what happened to most of the ‘victims.’ They weren’t raped; they were nagged.”

Writer Sarah Overstreet once wrote: “Our college students need the tools of personal power and responsibility, not a false definition of rape. So do we all. Lacking the skills or confidence to resist verbal coercion doesn’t make it a crime.”

For decades we’ve preached that when a woman says “no,” the man must stop. Now we are telling young men that when a woman says “yes,” they are still rapists because they didn’t ask in a politically correct manner. People like Ezra Klein trivialize sexual assault to the point that women who truly do not have reasonable alternatives except to give in to sexual abuse are being lumped in with women who merely regretted the exercise of their own free will the morning after. Colleges, spurred by oddities like Ezra Klein, are reimagining “proper” male sexual conduct in an effort to construct a progressive, supposedly female-friendly, sexual utopia. Rape law has never been a clearinghouse to redress every less than ideal sexual encounter, and until recently, our laws didn't punish criminality "in the air." Thanks to the Ezra Klein's of the world, that's all about to change because women have it so bad and those "other" men are so vile.

I could go on and on about Ezra -- a smarmy young progressive know-it-all from a well-to-do family who thinks it's his role in life to disabuse the self-satisfied bourgeoisie of their unenlightened notions. Ezra Klein, do the world a favor, and stop blogging about legal matters. Go teach math in a junior high school and leave the rest of us alone.

Thursday, October 16, 2014

Yesterday, a letter was published in the Boston Globe signed by 28 Harvard law professors voicing strong objections to the school's one-sided, feminist-inspired sexual misconduct policies. Among other things the professors said this: "Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation." We wrote about it here.

This letter is the single most important statement to date about American colleges' hostility to due process when it comes to men accused of sexual misconduct. Among the signers of the letter are esteemed criminal law expert Alan Dershowitz, Obama mentor Charles Ogletree, and Prof. Elizabeth Bartholet, who directs Harvard's Child Advocacy Program. Prof. Dershowitz said Harvard's policy (which is no different than hundreds of other schools' policies) is "political correctness run amok." Prof. Bartholet told a news outlet that Harvard's new policy comes "very very close" to California's new "yes means yes" law, requiring affirmative consent for sex on campus. She said the new policy is unfair to the accused and "degrading and demeaning for women" because it assumes women need special protection. Given the low standard of proof, Bartholet said that men could face unfair disciplinary processes that deny them representation and that result in their exclusion from any law school or from joining the Bar after graduation. She added: "What the student says [at Harvard] might be used in a related and subsequent criminal proceeding against him. But if the student doesn't speak that could be used against him in the disciplinary proceeding."

While it is too early to say, the letter may be a turning point in the public discourse on the subject. John Banzhaf, a law professor at George Washington University, said: "I think there already is growing a public backlash against it, and like any pendulum, once you go past the bottom and you start going in the other direction, it does begin to slow down. And I think it's beginning to slow down." (Prof. Banzhaf has previously pointed out -- echoing something we wrote about here -- that illegals crossing the border have more rights than college men accused of rape. Banzhaf also saysthat "the policies of many if not most public universities would be found unconstitutional if challenged in court, and administrators might even be found liable for damages.") Anne Neal, president of the American Council of Trustees and Alumni, said: "I think these professors are properly saying that we cannot allow our institutions to be taken down an Orwellian path where the Constitution takes a back seat to other considerations."

It would scarcely be possible to be more critical of the school's policies than the professors' letter. While it may be easy to dismiss "men's rights advocates" or so-called "conservative" commentators when they make precisely the same points, it is far more difficult to respond to a very serious attack on Harvard's policies by so many esteemed Harvard law professors.

At the Feminism subreddit, a post titled "Rape apologist professors strike back at Harward" [sic] has been mostly downvoted, thankfully. The person who authored that post wrote this comment under it, also downvoted: ". . . you have to consider the bigger picture. When one in five students are sexually assaulted on campus, there needs to be a stern reaction." That comment, of course, echoes the sentiments of the lynch mob at the hanging trees of the Old South where the motivating impulse was that due process could not adequately respond to rape by black men and, as one defender of lynchings put it, lynchings “are extraordinary measures demanded by extraordinary occasions.” And it is a good sign that the following comment under that hateful post at the Feminism subreddit was upvoted: "There needs to be proof as well. I believe that every single rapist should be punished to the full extent of the law, but [I] also believe that due process is absolutely fundamental to living in a free society, and if people can [accuse] others of something and ruin their life without requiring evidence then its a broken system and one that doesn't give equality to women or men."

Perhaps the real test will be when Jezebel and Salon respond to the professors' letter -- I don't see that either has written about it yet. It must be very difficult for their editors to decide what to say since the professors' letter bucks the narratives both outlets have consistently bleated. Until they respond, their readers will need to content themselves with the usual fare those outlets offer -- right now, the top story at Jezebel is "What Women Really Think of Sex With a Micro Dick."

While none of the usual suspects have responded, the anti-due process advocates at Harvard have weighed in -- and they've done so exactly as we expected: with a series of emotionally charged straw men and non sequiturs. And as expected, writer Tyler Kingkade gives their sentiments sympathetic treatment.

While the professors at Harvard's law school who signed the letter are among the most esteemed legal scholars in America, to counter their arguments -- which, by any measure, are irrefutable -- Tyler Kingkade trots out something called "Our Harvard Can Do Better," an organization whose Website doesn't even bother to explain who or what it is. Kingkade asserts, without substantiation, that they are "a group of student activists and sexual assault victims."

"Our Harvard Can Do Better" off-handedly declaresthat the professors' letter "reveal[s] their disconnect from the reality" of a "power imbalance." Then the group formally responds to the professors' letter with this statement(our comments are interspersed):

Harvard’s sexual harassment policy is not criminal justice law. The newly-created Office of Dispute Resolution (ODR) is not part of the criminal justice system. None of the possible outcomes of an [Office of Dispute Resolution] complaint hold anywhere near the severity or longevity of any criminal justice outcome. [COTWA: That "Our Harvard Can Do Better" thinks this is a legitimate justification for hostility to due process is both chilling and laughable] As an anti-discrimination framework, the Title IX complaint process is meant to decide which of two equally situated parties on campus requires additional support from the school to remain on equal educational footing. [COTWA: Except only one student will suffer a potentially life-altering punishment if the school gets it wrong -- and as the professors noted, the system is rigged against the accused] The spirit of Title IX is to protect every member of an educational environment from violent and discriminatory conduct -- sexual and gender based harassment -- that poses a serious threat to their safety and ability to learn. [COTWA: This, of course, has nothing to do with the professors' valid criticisms]

By implying Harvard should disregard its legal obligation to protect all of its students and ensure a safe and anti-discriminatory environment, [COTWA: The professors made no such implication, of course, but it's not surprising that "Our Harvard Can Do Better" recharacterizes the professors' arguments in order to attack them] this piece displays a callous lack of understanding of sexual violence and its effect on survivors in educational institutions. [COTWA: Cue the violins. The professors are "callous" for doing nothing more than calling for due process, since rape accusers -- which "Our Harvard Can Do Better" calls "survivors" -- suffer from their ordeals. The irrationality is breathtaking.]

And so it begins. We suspect that the usual suspects are seething over the professors' letter and will pull out the big guns in an attempt to trivialize it. Why do I suspect that? Because we are living in a society where, earlier this year, an administrator at a major college (Dartmouth) openly said thisabout students (almost exclusively male) who are merely accused of sex offenses: "Why could we not expel a student based on an allegation?" And I have not heard a single feminist condemn it. Not one.

I am hoping the professors' letter will spark a real dialogue, as opposed to a hate-filled monologue, on this critical issue. It's tough to do an un-PC thing. These esteemed professors are to be lauded for the courage to say what is true, instead of what is popular and politically correct. We hope the students and faculty at Harvard, and at colleges across America, will follow suit.

Ezra Klein is a far left extremist, a loon, and an ass. His hate-mongering needs no commentary. Let his other-worldly comment supporting affirmative consent speak for itself:

Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty D–n Sure.

Folks like me who loathe and detest with every fiber of our beings the Ezra Kleins and the Arthur Goldwags of the world are not the extremists. They are. See here and here.

Monday, October 13, 2014

If you think the title of this post is some "men's rights" hyperbole, read on. It's a legal fact, and everyone concerned about the rights of the presumptively innocent accused of rape needs to be concerned about this. In California and on college campuses across America, extremists have accomplished something that feminist legal scholars have been advocating for years. We've been warning against it here for a long time. Now, it's happening, and there appears to be no stopping it.

Under California's new "affirmative consent" law that governs sexual assault on college campuses, the accused must show that he took "reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented."

What is the problem with this, you ask?

For starters -- and this isn't even the big problem -- no one knows exactly what constitutes "affirmative consent." It is for this reason that not even progressive Harvard has adopted it. When Antioch College famously tried it, it was widely ridiculed, even on Saturday Night Live, because it doesn't comport with the way the vast majority of law-abiding people interact in the real world. To prove the point that the standard is without a clear definition, the co-author of the bill in California's Assembly, Assemblywoman Bonnie Lowenthal, D-Long Beach, was asked how an innocent person is supposed to prove consent. She said this: “Your guess is as good as mine."

But there's something even more fundamentally wrong with this law that few are focusing on. One of the most important, and startling, efforts of extremist feminist rape advocates has been to shift the burden of proving consent from the state to the accused. This is significant because the very essence of rape law is the absence of consent, and shifting the burden of proving that fact to the accused raises a host of due process concerns. Among other things, it would force presumptively innocent men and boys to testify, contrary to the Sixth Amendment, because the sex act would be a presumed crime if a woman cried rape; the only way to rebut that presumption would be for the man or boy to testify and try to convince a trier of fact (likely already predisposed to a finding of guilt) that consent was given.

Some have erroneously insisted the new law does not shift the burden of proof, but in practice it does. It requires the accused to show that he acted reasonably. FIRE thinks it shifts the burden of proof, so do supporters of the new law -- and they think it's a "needed corrective" to relieve the "victim" of this burden (the fact that they think accusers are "victims" tells us all we need to know).

The shift represents a sea change in the law. It makes the sex act -- something performed countless times every day since the beginning of time the world over -- a presumptive crime based on essentially nothing more than an accusation. The prosecution/college need not prove the crime, all they need to do is present a woman to say it happened. The burden then shifts to the accused, and if the man or boy does not carry his burden to prove that he obtained consent in the required manner (which no one can define), the accusation alone is sufficient to convict. The concept of "innocent until proven guilty" has been kicked to the curb; the '70s feminist mantra "always believe the woman" has been given statutory articulation; and the innocent have been placed at greater risk of being punished for offenses they did not commit.

Shifting the burden of proving consent is an idea long pushed by extremist victims' advocates. Linda Brookover Bourque's Defining Rape said in 1989 that the ultimate objective of rape reform is shifting the burden of proof from "the victim" to "the offender."

Mainstream feminist extremist Jessica Valenti advocates that America look to Swedish law as its legislative model for rape. She pointed out that "activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn't give it."

Serious feminist scholars have written extensively on the subject in an effort to change the law. Criminal law professor and feminist Michele Alexandre would make the sex act a presumed crime whenever a woman cries rape. The burden would be on the defendant to prove “that express and present consent was explicitly obtained at the time of the actual sexual interaction, not before or after . . . .” Only if the defendant is able to establish “express, present, and uncontroverted consent to the sexual interaction at issue” does the burden shift to the prosecution to prove withdrawal of consent . . . ." In this professor’s world, past sexual behavior – those routines a couple has established over the course of months or years, that private and unspoken language they've developed – none of it may be cited as evidence of present consent. Sex that occurs as a result of such flawed consent is rape. See M. Alexandre, ‘Girls Gone Wild’ and Rape Law: Revising the Contractual Concept of Consent & Ensuring an Unbiased Application of ‘Reasonable Doubt’ When the Victim is Non-Traditional, 17 American Univ. Journal of Gender, Social Policy & the Law 1, 41, 55-56 (2009).

In Addressing Rape Reform in Law and Practice (2008), Professor Susan Caringella of Western Michigan University's Sociology Department, not only refused to pay lip service to insuring that the innocent aren't punished with the guilty, she goes so far as to declare that men accused of rape are "overprotect[ed]." She writes: "It is high time to give victims a fair shake, to dismantle the zealous overprotections for men accused of this crime, which have been buoyed up by the myths about false accusations, ulterior motives, and so on, commonly embraced when rape charges are levied." Prof. Caringella advocates "a shift in the burden of proof to the defense [that] would entail that the defense establish, with a preponderance of the evidence, that it was more likely than not that the woman alleging the rape did give clear indications of freely chosen agreement to engage in the sex acts. Affirmative consent constitutes the kind of consent that would be . . . necessary to overcome the presumptive or implied nonagreement in the law. . . . . What the defense would be required to do would be to introduce adequate evidence to show that the alleged victim did openly and affirmatively express a yes of her own free accord."

These egregious notions are now becoming law on college campuses all across America, and there seems to be no stopping the momentum. Radical feminists have achieved a feminist Nirvana on campus. We shudder to think what they might demand next because no rape "reforms" have ever been sufficient for these people.

Aside from California, these outlandish ideas already become law in several jurisdictions:

U.S. Military

Article 120 of the Uniform Code of Military Justice, revised in 2006, removed "consent" as an element of rape and other forms of sexual assault and required the accused to raise "consent" as an affirmative defense and to prove it by a preponderance of the evidence. Only if the accused proves the affirmative defense does the burden shift back to the government to disprove the affirmative defense beyond a reasonable doubt.

It is a source of confusion how the prosecution could ever prove non-consent by a reasonable doubt after the accused has already proven consent by a preponderance of the evidence. But the more important problem is that a cry of rape literally turns the sex act into a presumptive crime.

In United States v. Neal, 68 M.J. 289 (2010), the U.S. Court of Appeals for the Armed Forces explained why shifting the burden of proof was proper in words that are as chilling as they are peculiar: "When sexual abuse by members of the armed forces occurs within a military organization, it can have a devastating impact on the good order and discipline essential to the conduct of military operations. When sexual abuse by deployed military personnel involves civilians, it can undermine relationships with the local population critical to our Nation's military and foreign policy objectives. These factors illustrate the importance of recognizing the broad authority of Congress to regulate the conduct of military personnel. That authority includes the power to define rape and its related offenses in a manner that does not require proof on the subject of consent, notwithstanding the traditional requirement in military and civilian law for such proof."

District of Columbia

In the District of Columbia, a sexual abuse statute, which encompasses any sex act committed by force or which places a victim in fear ob bodily injury, puts the burden on the accused to show consent. D.C. CODE § 22-3007 (2007). A court explained that the statute "was intended . . . to change the focus of the criminal process away from an inquiry into the state of mind or acts of the victim to an inquiry into the conduct of the accused." Russell v. United States, 698 A.2d 1007, 1009 (D.C. App. 1997).

Washington State

Criminal law Prof. Richard Klein has explained that in Washington state, courts typically include the following instruction to juries in rape cases: "A person is not guilty if the sexual intercourse is consensual. “Consent” means that at the time of the act of sexual intercourse, there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual." Prof. Klein explains that this instruction was challenged in 2006, but the court allowed it to stand.

But I am troubled by the strange, albeit politically correct comment by Florida's coach: "This has been a learning experience for everyone involved. Treon has been honest with me throughout the process and is looking forward to rejoining his teammates."

If Treon has been honest, that means he was wrongly accused, as his lawyer so forcefully explained. And if that's true, what, exactly, did Treon "learn" from the experience?

See, that's a little too close to Catherine Comins' infamous Time magazine quote for my taste: "Comins argues that men who are unjustly accused can sometimes gain from the experience. 'They have a lot of pain, but it is not a pain that I would necessarily have spared them. I think it ideally initiates a process of self-exploration. 'How do I see women?' 'If I didn't violate her, could I have?' 'Do I have the potential to do to her what they say I did?' Those are good questions.'"

The worst example of this kind of victim blaming in recent times occurred at Hofstra. If you aren't familiar with the case, you need to read about it here. Three of the falsely accused men appeared on the Steve Wilkos show after their false accuser admitted under oath to her lie. What happened is chilling. The men were immediately booed by some members of the audience. Wilkos asked why audience members booed the young men. An angry young women came to a microphone and exclaimed that she had been sexually assaulted, and that "it's not cool. And if you guys are lying about it, that's not right. I know what it's like. It's not cool." Her comments were greeted with applause. For his part, Wilkos was unsympathetic to the men. "Does that sound like a wholesome college experience?" Wilkos asked them, to applause. Later, one of the young men volunteered that they never should have gone to the party, to more applause. A male audience member stands up and says that he's gone to parties, and they don't have to end up having sex with a girl. The audience applauds again. Wilkos said he's "not trying to be a prude," but the story of their encounter was "creepy." And "maybe if you held yourself to a higher level of conduct . . . ." And "doesn't that sound a little sleezy?" Wilkos then takes offense that one of the men was videotaping the encounter (the videotape, of course, is what led to their freedom), and asks one of the young men if he'd like it if someone did that to him. The audience applauds again. Another audience member stood up and expressed doubt about their innocence.

If a television host had made similar comments about a rape victim, how long do you think he'd be on the air?

Another chivalrous man, a writer named Michael Daly, entered the misandry hall of fame with this gem: "The five were freed after getting the good scare that they well deserved." And this: "These five may not be guilty, but that does not make them innocent. They should stop their whimpering and apologize for acting like mutts."

Did you get that? The victims were not "innocent" (even though they were) and they should apologize to the criminal who lied about them. The statement is breathtaking in both its idiocy and sexism. Yet, Michael Daly wasn't canned.

You see, there is "victim blaming" and there is "victim blaming." Some "victim blaming" is not only acceptable but proper.

Florida quarterback Treon Harris is being investigated for sexual assault of a female -- he's not been arreseted, and he's not been charged -- but he's been suspended from the team indefinitely.

His attorney is fighting back and has issued a statement that includes the following: "We believe the evidence will show the alleged victim was in fact in the sexual aggressor with not one, but two young men early last Sunday morning." Read the entire statement here.

Why should Mr. Harris' story (told through his lawyer) carry less weight than his accuser's?

Thursday, October 9, 2014

NFL Commissioner Roger Goodell put on a 40-minute presentation cobbled together by the league with the help of a group of outside advisers (I shudder thinking about the size of the invoice those outside advisers are going to submit). The stated goal was to educate everyone in the NFL about the dangers of spousal abuse, child abuse, sexual assault and other domestic violence topics.

But what Roger Goodell ended up teaching was something very different. Goodell made the following startling comment: “But you’re trying to balance the due process with making sure you’re protecting the integrity of the game. My No. 1 job is protecting the integrity of the game, and I will not relent on that.”

Come again, Mr. Commissioner? Insuring that players accused of serious misconduct are afforded due process is somehow at odds with the "integrity of the game"?

Down the rabbit hole we tumble.

Kowtowing to a mob mentality to get "tough" on offenses against women by punishing players on the basis of a mere accusation without the opportunity for a fair hearing doesn't give your sport "integrity," Mr. Commissioner. Just the opposite. It makes it look like you are kowtowing to a mob mentality to get "tough" on offenses against women -- and that, surely, undermines "the integrity of the game."

Professional football games are governed by all manner of rules, some of which are very complicated, to insure fairness. At every game, there are seven officials on the field, not to mention the "replay assistant" off the field, who are watching every play to insure fidelity to these rules.

I am certain Mr. Goodell doesn't think that adherence to these rules is somehow a hindrance that undermines integrity to the game. In fact, it is inarguable that the absence of rules to insure fairness in the way games are played would undermine "integrity of the game." If fans didn't think the games were played fairly, the NFL soon would be out of business.

So, when it comes to matters off the field, exactly how does kicking due process to the curb protect the "integrity" of the game, Mr. Commissioner? When did insuring fairness in your decisions about players become such a hindrance to you?

Taking sexual assault and domestic violence seriously is a noble impulse. But we don't take them seriously without insuring that the truth about every allegation is fairly aired. Your fan base needs to have confidence that the NFL is fair not only on the field but off as well.

An accusation should never be tantamount to a finding of guilt, and rushing to judgment doesn't give your sport "integrity." It makes it unfair -- something NFL fans simply don't tolerate.

Tuesday, October 7, 2014

I have been a fan of the Cuomo family ever since I thrilled to your father's landmark keynote address at the 1984 Democratic Convention. No speech in my lifetime resonated with me like that one did. His cries for social justice still speak to me, and I can quote parts of that speech from memory more than 30 years later.

Sadly, your recent actions embracing the "affirmative consent" standard on college campuses tarnishes a remarkable legacy. Sexual assault is a problem that should not be ignored, but the "affirmative consent" standard is not the appropriate way to address it. Respectfully, it is an ill-conceived and hastily crafted policy that evinces a disturbing hostility to the due process rights of the accused. All of us can and should be allied in the fight against sexual assault without making it easier to punish the innocent for offenses they did not commit.

It is both ironic and disconcerting that the rush to respond to the public outcry about sexual assault on campus has had the perverse effect of allying progressives with law and order conservatives who typically have fought the expansion of due process rights at every turn. This is not something I would have expected of you.

The problems with the "affirmative consent" standard are many. First and foremost, there is no consensus as to what "affirmative consent" means. It is for this reason that Mia Karvonides, Harvard’s Title IX officer, has said that Harvard's new policies do not include an affirmative consent standard. She noted: “The closest any college comes to a defined affirmative-consent approach is Antioch College. Under their policy, consent is given step by step at every point of engagement during an intimate encounter. You must verbally ask and verbally get an answer for every point of engagement. ‘May I kiss you? May I undo your blouse?’ Etc.” You will recall that Antioch was widely ridiculed for this policy, even on Saturday Night Live, because it doesn't comport with the way the vast majority of law-abiding people interact in the real world. To enact this law will create "rapists" where they don't really exist.

To further illustrate that the standard is without a clear definition, California recently enacted the standard into law on its college campuses. The co-author of the bill in the Assembly, Assemblywoman Bonnie Lowenthal, D-Long Beach, was asked how an innocent person is supposed to prove consent. She said this: “Your guess is as good as mine." That comment is as chilling as it is telling. It is not something New York should embrace.

Second, to the extent the law can be read to require an accused student to prove that he obtained consent, this flips on its head the long-settled burden of proof and would make the act of love-making -- an act that occurs somewhere in the world countless times every second -- a presumptive offense merely on the basis of an accusation. That would work a sea-change in our law, with far-ranging, and possibly disastrous implications.

Our elected officials represent not just our daughters but our sons as well. The "affirmative consent" standard is the easy, but not the appropriate, way to respond to the public outcry about sexual assault on campus. Innocence Project guru Mark A Godsey has said that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases."

Every civilized society must strive to eradicate heinous criminality by punishing offenders, but it also must insure that the innocent aren't punished with them. It is not "either/or" -- we can and should be concerned about both rape victims and the wrongly accused. In the current rush to appease angry voices on campus, the absence of concern about the innocent is very troubling. We expect you, of all people, to evince that concern, Governor Cuomo, even though we know it is not the easy way forward.

You know the kind of comment I'm referring to -- where someone tries to justify the erosion of due process for college men accused of rape. Example: Tara Culp-Ressler dismisses concerns about convictions of innocent people with this inanity: “In reality, false rape allegations are very rare, comprising about two to eight percent of all reports.”

How do we respond to this? First, we debunk it by noting that it's deceptive -- because any implication that 92 percent of rape claims are legitimate rapes is a lie. The majority of rape claims can't be classified as legitimate or illegitimate (even the mainstream media is picking up on that: see here).

But second, we need to underscore the insane implication that if "only" eight percent of rape claims are false, that's not enough to worry about. Perhaps we need to respond to it the way a comment under this article responded to Culp-Ressler's quote, above: ". . . in reality, plane crashes are very rare, comprising about two to eight percent of all flights."

Monday, October 6, 2014

The Columbia University Marching Band has released a new policy in overreaction to reports of sexual harassment and sexual assault that includes the following: "For all reports of sexual assault, the perpetrator will be expelled from the band, and no longer permitted in any band space. The Bored upholds a Zero tolerance for sexual assault for the safety of all members of the band community."

The Community Standards Agreement treats all allegations of assault as factual, and stipulates that the marching band's board of managers must take steps against any member reported as an alleged assailant.

Make sure you are sitting down for the following quotation: “We don't care if something is not confirmed, we aren't interested in having alleged perpetrators in our group,” CUMB Head Manager Edith Lerner, BC ’16, said in an official statement. “We recognize that there could be problems with the policy, but we wanted it implement it [sic] right away so that our new members this year knew right off the bat what our values are and how serious we are about our community.”

What more can be said?

A college student who knows there could be "problems" with assuming guilt based on an accusation, but who is willing to sacrifice innocents who might be wrongly accused.

College students who don't understand the difference between "zero tolerance for sexual assault" and being at least reasonably certain that sexual assault actually occurred.

An entire generation not being properly schooled about concepts of fundamental justice -- they don't seem to have the first clue about Western Civilization's long battle against tyranny, where the presumption of guilt is routinely accepted. Have they ever heard of Blackstone's formulation?

Seriously, what more needs to be said about this madness?

Innocence Project guru Prof. Mark A Godsey has explained that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases." Professor Alan Dershowitz once wrote: "As one civil-liberties lawyer, who is concerned about the sometimes vigilante attitude toward accused rapists, puts it: 'Some people regard rape as so heinous an offense that they would not even regard innocence as a defense.'"

The Columbia University Marching Band isn't suggesting that anyone be strung up. But the motivating impulse of its new sexual assault policy stems from the same unjust premise as the one that guided the lynch mob at the hanging trees of the Old South. Sadly, these sentiments are all too common on American college campuses. An administrator at a premier college publicly questions why the school can't expel students on the basis of sex accusations, or that the school defends her for asking it. A United States senator circulates an extensive survey about sexual assault to hundreds of colleges and universities that classifies persons who make accusations of sexual misconduct as “victims,” and calls persons merely accused of sexual misconduct “offenders,” and it lists "policies and procedures that may discourage victims from disclosing and reporting assaults" to include: "Disclosure of offender’s rights in the adjudication process." A dean at a prominent university, when asked what would happen if two students got drunk to the point of incapacity and then had sex, said this: "Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex." A prominent college professor, when asked about the spate of lawsuits filed by men against their college for denying them due process, said this: "These lawsuits are an incredible display of entitlement, the same entitlement that drove them to rape."

And the news media, and the feminist community, stand by in stony silence while these sorts of things happen. It is beyond disgraceful.

Thursday, October 2, 2014

If you thought that colleges couldn't get any loonier when it comes to their handling of sex accusations, you need to know this: the University of Michigan defines "sexual violence" to include "withholding sex and affection."

What more can possibly be said?

Let's get one thing straight at the outset: don't be fooled by the gender-neutral language of college sexual assault policies. The incidence of women charged for college sex offenses is essentially non-existent Every single policy is adopted because of the belief that women are at inordinate risk of sexual assault.

To put the Michigan policy into perspective, you should know that colleges already punish men for engaging in consensual sexual behavior obtained by supposed emotional or verbal “pressuring.” They call it “sexual coercion,” and it sanctions men not for forcing themselves on, or physically threatening, women, but for doing nothing more asking for sex too much. For decades, society has been telling men to ask, but if they ask too much, they can be expelled, even if the woman agrees to have sex, and even if nothing stopped her from getting up and walking away. And, no, I'm not making that up.

Now, according to the University of Michigan, men commit "sexual violence" when women are the ones who want sex and men don't comply.

This is the triumph of lunacy, and it should be the last nail in the coffin to convince all rational people to say "enough!" -- colleges should not be handling sex offenses. Colleges have long been hostile to due process when it comes to sex charges against men, but what we've seen in the past couple of years is appalling.

It's not enough that California has just enacted a special rape law for college students (other women need not apply) that flips the burden of proving not just consent by "affirmative" consent to those accused of sex offenses, and that when asked how an innocent person is supposed to prove consent, the co-author of the bill in the state assembly said "Your guess is as good as mine." Not even due process-hostile Harvard would go that far because no one can say what "affirmative consent" means.

It's not enough that a statue of a sleepwalking man is "a source of apprehension, fear, and triggering thoughts regarding sexual assault" for women at one college, prompting the women to petition for its removal.

It's not enough that a United States senator circulates an extensive survey about sexual assault to hundreds of colleges and universities that classifies persons who make accusations of sexual misconduct as “victims,” and calls persons merely accused of sexual misconduct “offenders,” and that it lists "policies and procedures that may discourage victims from disclosing and reporting assaults" to include: "Disclosure of offender’s rights in the adjudication process."

It's not enough that a dean at a prominent university, when asked what would happen if two students got drunk to the point of incapacity and then had sex, said this: "Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex."

It's not enough that a prominent college professor, when asked about the spate of lawsuits filed by men against their college for denying them due process, said this: "These lawsuits are an incredible display of entitlement, the same entitlement that drove them to rape."

It's not enough that the Department of Education says students must be found responsible for sex offenses even when the college has a serious doubt about their guilt (the "preponderance of the evidence" standard) or that in all the new laws passed to govern campus sexual assault, none of them -- none of them -- provide for the due process rights of the accused or that those who illegally cross into the United States have more rights than a college student accused of rape.

We are rapidly approaching the day when the window dressing of college sex tribunals will be discarded and that colleges will expel, as that Dartmouth administrator suggested, on the basis of an accusation. That seems to be the feminist agenda.

Wednesday, October 1, 2014

Some of you will recall the widespread condemnation of the frosh-week rape chant at Saint Mary’s University. It was universally criticized as sexist and offensive -- by the school and pretty much everyone else. Not only that, all 80 frosh leaders were forced to attend "sensitivity training."

Contrast that condemnation with this: at the University of Chicago, the school gave its support to an anonymous online posting that listed the names of men who have allegedly committed acts of sexual violence against students on campus. The university wrote: “Being part of a community in which open discourse is a fundamental feature of education and research means subjecting our own ideas to scrutiny and hearing competing views — even those we sometimes find objectionable."

In the words of the Department of Education's infamous "Dear Colleague" letter, isn't labeling an innocent student a rapist something that "interferes with [his] right to receive an education free from discrimination"? There is no question that a rape lie is far more damaging than a thoughtless sexual comment directed to a woman. Yet the university would deem the latter harassment while protecting the former. The wrongly accused have been driven to suicide over rape lies, and this is protected speech on campus?

You see, puerile and insensitive speech about rape in general is punished; speech in the form of specific allegations that could destroy the reputations of specifically named men is supported, even though, by any rational measure, the latter is more potentially harmful, and more offensive, than the former.

Even the creators of the offending website that listed the men's names openly acknowledged that the list might harm innocent men. But, they said, that's just too bad. You see, there is a supposed "conflict" between protecting women's bodies and men's reputations, and you can guess which one they chose. "Society has tended towards protecting reputation. We would like to protect bodies.”

In fact, the creator of the Website has invented a false, indeed, absurd, conflict. If a student is a rapist, the only rational response is to go to the police -- not to create a libel free zone where the innocent will have their good names destroyed while the rapists will just go on raping.

Shame on the University of Chicago for condoning this horrid practice.